Michigan Journal of International Law Volume 14 Issue 3 1993 Burdens of Proof Jose E. Alvarez George Washington Univeristy, National Law Center Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Courts Commons, Evidence Commons, and the International Law Commons Recommended Citation Jose E. Alvarez, Burdens of Proof, 14 MICH. J. INT'L L. 399 (1993). Available at: https://repository.law.umich.edu/mjil/vol14/iss3/1 This Book Review is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. BURDENS OF PROOF FACT-FINDING BEFORE INTERNATIONAL TRIBUNALS. Edited by Richard B. Lillich. Ardsley-on-Hudson: Transnational Publishers, Inc., 1992. xvi + 338 pp. Reviewed by Jose E. Alvarez* This compilation of papers presented at the University of Virginia's Eleventh Sokol Colloquium is not, as is duly noted in its preface, a "comprehensive treatise" on evidentiary issues before international tribunals. It is, however, according to its editor, "the most thought- provoking as well as practical treatment of the subject yet to appear" and "should become the seminal work" in the field.' These claims are not fulfilled. This volume does not rise above its symposium origins. Its fifteen chapters are likely to be equally frustrating to its two intended readerships: international litigators and academics. This is neither the nuts and bolts guide nor the comprehensive compendium of evidentiary rules drawn from practice which international litigators might find useful.' Neither is it a jurisprudential treatment of interest to those with a more philosophical bent. Further, its proposals for reform are not particularly surprising or innovative. The editor's claims are nonetheless plausible in one sense: this is the most complete reexamination of the subject since Durward Sandifer's in 1975.' Given the renewed interest and expecta- tions for international adjudication-as well as the relative dearth of writing (at least in English) on the subject of how these tribunals engage in finding facts5-Fact-Finding Before International Tribunals is likely * Associate Professor of Law, George Washington University, National Law Center. The author expresses his gratitude to the Law Center's Dean Jack Friedenthal whose generous summer research program made this review possible and to readers Lucy Reed and Susan Damplo for their helpful suggestions. 1. FACT-FINDING BEFORE INTERNATIONAL TRIBUNALS (Richard B. Lillich ed., 1992). 2. Id. 3. Compare, for example, some of the prior work of some of the authors here which can provide more practical hands-on guidance. See, e.g., Keith Highet, Evidence, the Court, and the Nicaragua Case, 81 AM. J. INT'L L. 1 (1987); Jamison M. Selby & David P. Stewart, PracticalAspects of Arbitrating Claims Before the Iran-United States Claims Tribunal, 18 INT'L LAW. 211 (1984); Thomas M. Franck & H. Scott Fairley, Procedural Due Process in Human Rights Fact-Finding by InternationalAgencies, 74 AM. J. INT'L L. 308 (1980). 4. DURWARD SANDIFER, EVIDENCE BEFORE INTERNATIONAL TRIBUNALS (rev. ed. 1975). 5. Despite the proliferation of tribunals and cases, particularly in the commercial setting, there has been little systematic attention to evidentiary issues. Among the articles and books are Michael Reisman & Eric E. Freedman, The Plaintiff's Dilemma! Illegally Obtained Evidence and Admissibility in InternationalAdjudication, 76 AM. J. INT'L L. 737 (1982); Anker, The Use of Tribunal Appointed Experts, MEALEY'S LITIGATION REPORTS (Iranian Michigan Journalof InternationalLaw [Vol. 14:399 to be widely cited despite its inadequacies. The structure of this book is altogether different from Sandifer's treatment. Sandifer dealt with the subject as if he were rewriting, for the international litigator, McCormick's6 or Weinstein's 7 respective treatises on evidence. Sandifer's 1975 edition, an update of his 1939 doctoral dissertation published under the same title,' is an orderly distillation, organized around evidentiary principles familiar to domestic lawyers, of the practice of such bodies as the Permanent Court of Justice, the International Court of Justice and diverse arbitral tribunals. In grand hornbook manner, Sandifer purported to present in "systematic and codified form a statement of the law of evidence as it stands today in international procedure."9 Accordingly, Sandifer addressed the "function and nature" of evidentiary rules, l0 the "order and time of the submission 12 of evidence,"" and the rules applied to production and admission, evidence, 13 ex parte evidence such as documentary versus testimonial 16 affidavits,' 4 authentication," evidence by interested persons and hearsay, and judicial notice.17 Sandifer's book has been useful to international practitioners because of its old fashioned claim to completeness; those who sought to make an advocate's argument on, for example, the evidentiary weight to be accorded a sovereign's assertions of fact could find in it a ready reference. There was also comfort in Sandifer's claim Claims), Mar. 16, 1984, at 254; Colin Tapper, Evidence Reform in an InternationalContext, 22 U. W. AUSTL. L. REV. 31 (1992); GILLIAN MARY WHITE, THE USE OF EXPERTS BY INTERNATIONAL TRIBUNALS (1990). See also SANDIFER, supra note 4. There has been greater attention to procedures within the ICJ. See, e.g., Neill H. Alford, Jr., Fact Finding by the World Court, 4 VILL. L. REV. 37 (1958); Keith Highet, Evidence, the Court, and the Nicaragua Case, 81 AM. J. INT'L L. 1 (1987). See generally, THE INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS (Lori F. Damrosch ed., 1987); SHABTAI ROSENNE, THE LAW AND PRACTICE OF THE INTERNATIONAL COURT (1965); SHABTAI ROSENNE, PRACTICE AND METHODS OF INTERNATIONAL LAW (1984); SHABTAI ROSENNE, PROCEDURE IN THE INTERNATIONAL COURT: A COMMENTARY TO THE 1978 RULES OF THE INTERNATIONAL COURT OF JUSTICE (1983). 6. MCCORMICK ON EVIDENCE (Edward W. Cleary ed., 3rd ed. 1984). 7. JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE (1992). 8. SANDIFER, supra note 4, at xiii. 9. Id. at xiv. 10. SANDIFER, supra note 4, at 1-34. 11. Id. at 46-94. 12. Il at 95-196. 13. Id. at 197-240. 14. Id. at 240-69. 15. Id at 269-84. 16. Id. at 349-81. 17. ld at 382-97. Spring 1993] Burdens of Proof that despite the variety of (often ad hoc) tribunals, there has been doctrinal continuity. Sandifer discerned a harmonious pattern tantamount to a "customary law of evidence" amidst the clutter of the reported cases.18 By contrast, Fact-FindingBefore International Tribunals is not a standard reference work, and it lacks a unifying voice to make sense of the clutter. For the most part, each of the authors of its fifteen chapters confines himself or herself to a particular international forum or type of forum. The International Court of Justice (ICJ), the Iran-United States Claims Tribunal, the European Court of Justice, administrative tribunals, human rights tribunals, and other human rights fora are each given attention in turn. With the exceptions of an all-too short chapter by Richard Bilder which questions whether "facts" can be so easily distinguished from the "law," and an essay by Thomas Carbonneau which critiques many of the recommendations made in the other papers, the chapters are largely self-contained and show little evidence of cross- fertilization. Each author marches to the beat of his or her own drummer, to the detriment of any possible insights that might apply across the diverse tribunals discussed. Moreover, due to the limited range of each author's contribution, when such generalizations are made, they prove to be of dubious value. Most of the fifteen chapters of the book are briefly surveyed in Part I below. The premises of the book come under fire in Parts II and III, which challenge the book's titular claim that it constitutes a survey of "fact-finding" by "international tribunals." I. SYNOPSIS The major recommendations emerging from Fact-Finding Before International Tribunals are simply put by Lillich in his preface: that arbitrators and judges should have some fact-finding expertise, that they should be more aggressive about finding facts, and that they should avoid ducking the facts through legal determinations. 9 These themes are applied to the International Court of Justice (ICJ) in the first four chapters by Stephen Schwebel, Thomas Franck, Keith Highet, and Pierre-Marie Dupuy. Schwebel, Judge on the International Court of Justice, comments on "Three Cases of Fact-Finding By the International Court of Justice." The 18. Id. at 457-58. 19. FACT-FINDING BEFORE INTERNATIONAL TRIBUNALS, supra note 1, at xi. Michigan Journal of InternationalLaw [Vol. 14:399 cases chosen are the well-known ELS12 and Nicaragua21 cases as well as the less familiar case of Mr. Yakimetz,22 a USSR national who, after his resignation from Soviet government service and a request for asylum in the United States, was denied continued U.N. employment. While Schwebel takes issue with the factual conclusions reached by the chamber deciding the ELSI Case, he praises the chamber's handling of the facts, and contrasts it with the too timid approach to fact-finding taken by the full Court in the Nicaraguaand Yakimetz cases. To Schwebel, the latter cases illustrate the Court's tendency to play only a "passive" role in fact- finding, particularly in failing to probe witnesses. Thus, Schwebel criticizes the Yakimetz Court's failure to reconsider a crucial issue of fact: the Administrative Tribunal's finding that the Secretary-General had indeed given reasonable consideration to a career appointment for Yakimetz. Schwebel also castigates the Nicaragua Court for failing to probe deeply enough, at the merits phase, El Salvador's claims of collective self defense, particularly its claim that Nicaragua had been supplying arms to insurgents in El Salvador.